Sunday, March 17, 2013

With the Free State Foundation's March 21st Fifth Annual
Telecom Policy Conference just days away now, naturally I've been doing a lot
of thinking about the conference and its theme – "Completing the Transition to a Digital World: How to Finish the
Job and Why It Matters."

I acknowledge that, in many ways, there is significant
overlap between this year's theme and that of the two preceding conferences.
The Third Annual Conference theme was, "Broadband
Policy: One Year After the National Broadband Plan," and the Fourth
Annual Conference's was, "The
Internet World: Will It Remain Free From Public Utility Regulation?"

So, getting the right policies in place for broadband
networks and the Internet has been the principal focus for the last few years,
and even before. And rightly so. But with this year's theme – the emphasis is
on "Completing " – I hope
to invoke a greater sense of urgency as to why the U. S. needs to finish the
job.

Almost three years ago to the day, the FCC's National
Broadband Plan was released. It recognized
that requiring incumbents to maintain two networks – the legacy analog networks
that were built for POTS [Plain Old Telephone Service] and new digital
broadband networks – "siphon[s] investments away from new networks and
services." Thus, the Plan recommended that the Commission initiate a
proceeding to "ensure that legacy regulations and services did not become
a drag on the transition to a modern and efficient use of resources." Accordingly,
the Commission needed to "start considering the necessary elements of this
transition in parallel with efforts to accelerate broadband adoption and
deployment." [The Plan's Executive Director, Blair Levin, now a Fellow at
the Aspen Institute's Communications and Society Program, will deliver closing
remarks at this Thursday's conference.]

Last November, AT&T filed a petition
with the Commission asking the agency to launch a proceeding "to
facilitate the 'telephone' industry's continued transition from legacy
transmission platforms and services to new services based fully on the Internet
Protocol ('IP')." The Commission has
done so, comments and reply comments have been submitted, and today the agency
is holding a "Technology
Transitions" workshop.

This is all well and good, even commendable. And I don't
want to be a scold. But truth be told: The Commission still is behind the times,
still beset by a twentieth-century regulatory mindset.

There must be a
greater sense of urgency for reform.

After all, as I have pointed
out before, it was in December 2000 when then-FCC Commissioner
Michael Powell (subsequently FCC Chairman and now President of the National
Cable & Telecommunications Association) delivered his stirring call to action
regarding what he called "The Great Digital Broadband Migration." Mr. Powell articulated the challenges facing
policymakers in light of the "the great technological migration" from
narrowband to broadband, from analog to digital, that already had begun: the
need to focus on innovation incentives; to implement deregulation of
competitive markets; to rationalize the regulatory structure to account for the
"bit is a bit" phenomenon; and to improve regulatory procedures to
make agency decision-making more efficient.

And, in the context of urging the
Commission to reform its regulatory process, Mr. Powell bluntly declared:
"Our bureaucratic process is too slow to respond to the challenges of
Internet time." In my judgment, this has not changed in the ensuing dozen
years." [I bet Michael Powell agrees with me. But, if not, he will be
participating at this Thursday's conference, and he can say so.]

There must be a greater sense of urgency for reform.

As most of you know, Senator
Marco Rubio is delivering a keynote address, in which he is expected to focus
on his telecommunications priorities, including Internet policy and governance
and spectrum policy issues. And I will conduct an informal, wide-ranging
conversation with FCC Commissioner Ajit Pai. [Note this program change: Due to
an unavoidable scheduling conflict, Senator Rubio now will be speaking at 1:00
PM, during the lunch session, and my conversation with Commissioner Pai will
begin at 9:00 AM, immediately after my welcome and introduction at 8:50 AM. The
agenda with the revised schedule ishere.]

In addition to the keynote
sessions with Senator Rubio and Commissioner Pai, and Blair Levin's closing
remarks, there will be three panels of prominent experts in which all of
today's important communications policy topics will be discussed. I'm sure the
panelists will be delving into the details of topics ranging from the
IP-Transition to net neutrality, from program carriage requirements to
retransmission consent disputes, from program access mandates to special access
controversies, from data caps to spectrum caps, from USF reverse auctions to
spectrum forward auctions, and much more. I'm confident that, however much you already
know, or think you know, you'll learn a lot more. I always do.

But amidst all of the
nitty-gritty policy details that will be addressed, I hope you will think along
with me about how the discussion relates to the bigger picture – how the
conversation fits into the overall theme of "Completing
the Transition to a Digital World," and into the frame of the larger,
fundamental questions still confronting policymakers who too often are still hobbled
with an analog-era mindset.

These larger, fundamental
questions include:

Will Internet service providers in the digital broadband
world remain free from the legacy, public utility-style regulations that
characterized narrowband service providers in the analog world, or will today's
digital broadband services be subjected to public utility-style regulation,
through the imposition of net neutrality mandates or otherwise?

Or, the same question, put more directly in a
frame posited by Susan Crawford in her new book, "Captive
Audience": Will today's digital cable operators and other broadband
operators be regulated under a "utility model" – her words – in the very
same manner as twentieth century electric utilities and nineteenth century
railroads?

Or, the same question, put in a slightly different
frame in light of a report
issued just last week by a French government advisory panel recommending that
net neutrality regulations be applied not only to Internet service providers
but also to search engines and social networks: Will net neutrality regulations
in this country inevitably be extended to reach dominant search engines and
social networks, especially in light of the fact that many of the
pro-regulatory forces in this country look favorably upon European regulatory
models?

In today's competitive broadband marketplace
environment fostered by digital technologies, when consumers have an abundance
of news, information, and entertainment choices, will cable, telephone, and
satellite video providers, finally enjoy the same First Amendment free speech
rights as the print media, or will they continue to be treated as second class
citizens for First Amendment purposes?

In an environment in which spectrum constraints,
fueled by ongoing exponential growth in wireless broadband usage for video and
other high-bandwidth applications, are widely acknowledged, will the Commission
adopt more free market-oriented spectrum policies characterized by flexible
use, unencumbered auctions, and facilitation of secondary market transactions,
or will the agency retain traditional command-and-control rules designed to
micro-manage markets?

The way in which policymakers answer these fundamental
questions – and all the questions subsumed under them – will impact, for better
or worse, all American consumers and the nation's social and economic
well-being. At the Free State Foundation, we firmly believe the answers to the
questions properly are to be found in a commitment to free market-oriented,
property rights-protective, and First Amendment-friendly principles. Whatever
your own beliefs, however, I am confident you will find the sessions at FSF's
Fifth Annual Telecom Conference not merely interesting and informative, but
stimulating and lively.

I hope to see you on Thursday. The current agenda is here.
Again, please note that my conversation with Commissioner Pai will begin at
9:00 AM and Senator Rubio will deliver his keynote address at 1:00 PM.

Registration is complimentary, but you absolutely must
register to attend. If you haven't already, you may register here.